brady v. maryland and progeny ppt · 2/19/2014 6 Brady v. Maryland, 373 U.S. 83 (1963) Motion for...

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The Ethical, Effective The Ethical, Effective The Ethical, Effective The Ethical, Effective

Assistance of Counsel and Assistance of Counsel and Assistance of Counsel and Assistance of Counsel and

Jencks Act Consequences ofJencks Act Consequences ofJencks Act Consequences ofJencks Act Consequences of

Brady v. Maryland Brady v. Maryland Brady v. Maryland Brady v. Maryland and and and and

its Progenyits Progenyits Progenyits ProgenyDavid P. Baugh, Esq.

2025 E. Main Street, Suite 114

Richmond, Virginia 23223

[email protected]

Brady v. Maryland, 373 U.S. 83 (1963)Brady v. Maryland, 373 U.S. 83 (1963)

What is Brady Information?

� Exculpatory Information

� Impeachment Evidence

� Evidence which mitigates the degree of

offense or punishment


Exculpating Evidence

� Evidence which suggests that someone

else committed the offense

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Impeaching Evidence

� Any evidence that would bring into

question the credibility of any government

witness, inconsistent witness statements or prior inconsistent statements by a witness


Mitigating Evidence

� Information which reduces the grade of

offense or punishment - say from murder to

manslaughter, or a lesser weight of drug cases


Ethical Considerations

� Time of Tender – “for use at trial”

� Timeliness should be in order to use during preparation

� Virginia LEO 1862

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ABA Rules of Professional Conduct

� Rule 3.8 Special Responsibilities of

a ProsecutorThe prosecutor in a criminal case shall: . . .

(d) make timely disclosure to the defenses of all evidence or

information known that tends to negate the guilt . . . Mitigate the offense . . . or except when . . . relieved of this

responsibility by a protective order of the tribunal.


The Brady Motion

� All Brady information know to the government

Pointless and no constitutional or record protection except to the most basic and obvious Brady information, such as a confession from someone

else or a statement from a witness that someone else committed the offense


� A general Brady request is totally worthless for

appeal or habeas. U..S. v. Agurs, 427 U.S. 97 (1976)

� A specific Brady request – the prosecution is

“seldom, if ever” excused from complying,

irrespective of good or bad faith on the partof the prosecution. U.S. v. Agurs, supra.

- Note this standard triggers the prosecution’s proving beyond a reasonable doubt that denial of tender did not affect the verdict.

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� Timeliness

� If something pops in a Brady tender whichchanges your defense hypo or which gives

rise to anew defense hypo, move for

continuance and object, object, object.

Making the Brady Record


� You cannot provide effective assistance of counsel

without tender of all Brady during trial preparation and

before plea negotiation

� Guilty plea must conform with effective assistance of

counsel standards. Missouri v. Frye, 132 U.S. 1399 (2012)

� Guilty plea waiver of rights must be intelligently,

knowing, and deliberately made. U.S. v. Zerbst

Reality


ABA Guideline 6.3 –Decision to Enter a Plea of Guilty

(a) Counsel shall make it clear to the client that the client must

make the ultimate decision whether to plead guilty. Counsel

should investigate and explain to the client the prospective

strengths and weaknesses of the case for the prosecution and defense, . . . Counsel should not base a recommendation of a

plea of guilty solely upon the client’s knowledge of guilt or

solely upon a favorable disposition offer.

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Motion for Court Monitored Brady Tender Should:

� Require the prosecution to admit or deny, either inwriting or on the record, the existence of eachspecific and enumerated item of Brady requested

information sought by the defense.



� Require the prosecution to admit or deny, eitherin writing or on the record, the specific steps taken to comply with Kyles v. Whitley, 514 U.S. 419

(1995) to determine the existence of specificrequested Brady information from the files andwritings of law enforcement.



� Strongly encourage the prosecution to disclose,or submit for in camera review, under penalty ofsanction including dismissal, all evidence

arguably within the rule in Brady.

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Motion for Court Monitored Brady Tender Should: � Require the prosecution to submit in camera,

ex parte review, on the sealed record, any requested specific exculpating, mitigating or

impeaching information it wishes to withhold because the prosecution believes the information is not “material” to the outcomeunder Brady or the disclosure would cause a

public or witness security concern.



� The Court will issue written orders and findings offact and conclusions of law regarding each specific Brady request made by the defense.


Getting a LEO from your State Bar

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Jencks Act


Conclusion

Questions?

THE ETHICAL, EFFECTIVE ASSISTANCE OF COUNSEL AND JENCKS ACT CONSEQUENCES OF BRADY V.

MARYLAND AND ITS PROGENY

VIRGINIA TRIAL LAWYER’S ASSOCIATION The Homestead March 28, 2014

David P. Baugh, Esq.

[email protected] Richmond, Virginia

Violations of Brady v. Maryland, 373 U.S. 83 (1963) and the denial

of due process protections have become one of the largest reasons for

successful habeas challenges to criminal convictions. Mistaken and, in many

instances, deliberate suppression of evidence which tends to negate the guilt

of the defendant, mitigate his or her punishment or which could impeach a

government witness has become an all too frequent blemish on criminal

prosecution in this nation.

A cursory internet investigation bears out the extent of the problem

and the due process impact of this issue. It is further complicated by several

notable cases wherein systemic toleration for the suppression of evidence

favorable to the defendant has grabbed the headlines of the nation's leading

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newspapers and lead to sweeping court orders in federal and state cases. A

quick Google search for cases involving Brady violations and suppressed

exculpating evidence.

The relatively recent civil opinion in Connick v. Thompson, 563 U.S.

2011 (2011) has eliminated virtually any deterrent effect of detection of

prosecutor misconduct by granting an absolute immunity from § 1983

liability for prosecutors engaging in deliberate and long term systematic

pattern of suppression of Brady information.

to hundreds of pages of law review cites from around that nation from over

the years.1

Compounding the difficulty with implementation of the Brady

protections is the sometimes innocent failure of prosecutors to recognize

favorable evidence to the defense.

Another, and perhaps the greatest impediment to full benefit of the

due process opinion in Brady is the ignorance of judges, prosecutors and, all

too many defense attorneys as to what Brady material is the “good faith”

opinion of the prosecutor that the information is not exculpating, impeaching

or mitigating.

1 Examples Geo. J. Ethics, 1993; Wisconsin Law Review, 2006; Duke Law journal, 1969, Wash. University Law Quarterly, 1999; Fordham L. Rev. 1984; Fordham L. Rev.; 2000; McGeorge Law Review, 2002; Colum. L. Rev. 1989; Rutgers L. Rev. 1990; The Yale Law Journal, 2006 reveal the duration and legal depth of the issue.

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WHAT IS BRADY INFORMATION? -

Brady information is not merely “exculpating” evidence: exculpating

evidence being evidence which goes to prove your client’s innocence. Brady

material, for which the government has a constitutional obligation to tender

to the defendant, includes:

■ Exculpating evidence,

■ Impeachment Evidence, and

■ Evidence which could mitigate the defendant’s punishment.

It is important to remember all three types of evidence: exculpating,

impeaching and mitigating and understanding the examples and differences

of each.

Exculpating evidence is relatively easy evidence to understand and

recognize: a confession from someone else, or a witness who says someone

else committed or is likely to have committed the offense.

Impeachment evidence is usually thought of as evidence of some

government witness having a reason for lying. It the witness is getting a deal

in return for his or her testimony, that is impeachment evidence or Giglio

evidence. But also, and it should be recognized and described in your

motion, impeachment evidence would be if a witness has given differing

statements. If one statement, Statement A, says one thing and another,

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Statement B, says something else, each of those is impeaching. Statement A

can be used to impeach the witness on Statement B and Statement B can be

used to impeach on Statement A. If there are different witnesses and one

witness says the robber had on a blue shirt and another says the witness had

one a red shirt, that is impeachment. Both are impeachment as each can be

used to impeach the other.

Mitigation evidence is also an aspect of Brady often overlooked. If

one witness says the defendant was selling 100 grams a week and another

says he was selling 50 grams a week, that is mitigating. The statements

lessen the total weight and that lessens the punishment.

Likewise, for example in a premeditated murder case, one witness

says your client was arguing with the victim before they were shot, or that

they had a “beef” and that was a part of the killing, the presence of “hot

blood” negates premeditation. It lessens the murder one to a murder two or

three.

Some Brady materials can be readily identified: the confession of

another and the contradicting witness are but two examples. However many

Brady requirements are determined by the defense hypothesis, of which the

prosecution might not be aware.

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By example a victim's propensity for violent outbursts might not be

classified as Brady in a routine premeditated murder case. Such would likely

be inadmissible under the federal rules of evidence. However, if the

defendant is formulating a self-defense case, such evidence would be

admissible in a murder case.

In a non-capital case a denial of Brady tender can result in reversal

only if the suppressed evidence could have lead to a different verdict.

ETHICICAL CONSIDERATIONS CONCERNING BRADY –

Most courts let the prosecutor provide Brady material in time to be

used from cross examination of a witness. That is the law. There is much

and very recent case law indicating that giving the Brady material up during

trial will suffice to comply with Brady obligations. The opinions in support

of this last minute tender are replete with references to the assertions that

“there is not constitutional right to discovery.” Never noticed by the courts is

that Brady is not discovery. Brady tender is a constitutional due process

issue.

Case law has abdicated the entire constitutional question to the

prosecution. What is Brady and when must it be tendered is subject to the

prosecutor’s understanding of the law, without supervision, and his or her

whim. On appeal the Brady violation is only subject to reversal only if the

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omitted evidence would have changed the outcome. This assessment is made

against a record and defense crafted without benefit of knowledge of the

omitted evidence.

Secondly, in most instances the attorneys object to the late tender, but

that is the end.

From this moment on, as we try to drag the courts into compliance

with the constitution, as soon as the last minute tender is made of some

impeachment information, immediately move for continuance to research

and investigate the tender. See if there is something that should be followed

up on, outside of court. If denied, OBJECT, OBJECT OBJECT.

However, the ABA ethical guidelines, adopted by most state bars have

changed that. The new guidelines do not change the law, but they do set an

ethical Brady tender obligation earlier than cross examination. In the ABA

Model Guidelines tender is required when the prosecutor finds the Brady or

identifies, in response to a Brady request, the Brady material. If not tendered

immediately the prosecutor is to seek a protective order.

ABA Rules of Professional Conduct

Rule 3.8: Special Responsibilities of a Prosecutor

Advocate Rule 3.8 Special Responsibilities Of A Prosecutor

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The prosecutor in a criminal case shall:

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Emphasis added.

You should check your state ethical rules. This ABA model rule has

been accepted and, now, including, in the ethical guidelines of most states.

Again, although not law, it is an argument you can use and you should be

familiar.

The word "timely" should be better defined. Some states have ruled

that the tender of the information if made before trial or during the trial at a

time prior to the defendant's resting is sufficient.

Disclosure after investigation, formulation and commitment to a

defense theory before the jury in opening statement is not timely and denies

the defendant effective assistance of counsel. The defendant enjoys, among

his rights to effective assistance of counsel the right to have the attorney

fully and properly investigate all leads. Additionally, the defendant has the

right to have his or her attorney to apply his or her legal expertise in

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developing, far in advance of trial, a defensive theory. Such a theory could

not be formulated if the true extent of the government's allegations and

evidence is not known. Tender during trial might require the defense to

negate its opening statement and the theory of the case, the defense theory at

that time being inconsistent with a defense theory predicated with ignorance

of the suppressed evidence.

Virginia's bar counsel changed its definition of timely by issuing a

new Legal Ethics Opinion. The Commonwealth of Virginia State Bar Office

of Bar Counsel recently issued Legal Ethics Opinion 1862 in March of 2012

which defined "timely disclosure" as mandating the disclosure duty as soon

as the prosecutor is aware of the existence of the information, unless relieved

of the obligation by protective order. This definition recognizes and foresees

the need for the tender of the Brady information at a time which enables the

defense to investigate, evaluate and use the exculpating information.

It should be argued in a real and complete Brady motion that the

language of the ABA Model Rules of Professional Conduct, again, adopted

by every state I am aware of and have checked, implicitly conveys to the

court leave to compel ex parte submission of information, for whatever

reason, the prosecution wishes to conceal. The seeking of a protective order

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by the government would necessitate in camera review of the item for which

nondisclosure is sought.

In every case you have, if you are serious about the case, you should

file a motion for court monitored Brady tender.

I would also encourage all true criminal defense advocates to file for

legal ethics opinions in your state for a similar ethical definition of the word

“timely” regarding the duty to tender Brady materials.

Of note is that the Assistant Attorney General issued a memo to all

United States Attorneys setting forth the policy of the Department of Justice

in relation to discovery and Brady. Google will take you to the memo and a

portion of it is attached to this paper. In short, the Assistant Attorney

General Ogden states that Brady materials should be tendered “when

discovered.”

No court would allow a government memo to be viewed as binding on

the Department of Justice or to give rise to a defendant’s right. Do each of

you remember the Petit Policy? However, the Ogden policy could be used in

support of a Court Monitored Brady Tender Motion. You should also inform

the court that you would be ineffective to advise a client to take a plea or

even enter into plea negotiations until all discovery and Brady material has

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been tendered. That is as per the ABA Capital Counsel guidelines and the

policy of many public defender offices.

THE ACTUAL BRADY MOTION –

Most attorneys file a discovery motion, under Rule 16 in federal court

or your local court rules, and add a sentence asking for “all Brady

information known to the government.” Such a motion is pointless. It has no

constitutional and record protection implications except for the most basic

information, such as the confession of someone else.

No, a proper Brady motion must specifically set out what is being

sought. The question arises, naturally, how can someone seek specifically

that of which he or she is unaware?

MAKING YOUR BRADY RECORD –

Start with this reality. A general, plain vanilla, “give me my Brady

material motion” is worthless for preserving the client’s rights. And when a

judge starts are setting the case with a blanket order for Rule 16 and Brady

tender, the judge is an idiot. How can someone order Brady without even

knowing or even having an inkling of your defensive theory. It is that

defensive theory which determines what is exculpating, mitigating or

impeaching.

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Simply stated, a trial advocate need only remember a few basic rules

to preserve the appellate record.

1. A general or non-specific Brady request (“Defendant moves for

tender of all Brady materials.”) is totally worthless and of no

greater value for appellate or habeas purposes than no Brady

motion. See United States v. Agurs, 427 U.S. 97 ((1976).

2. When a defendant makes a specific and express request for

identified Brady material within the possession of the government,

the prosecution “is seldom, if ever” excused from complying with

the request, irrespective of good or bad faith on the part of the

prosecution. The conviction must be reversed if the suppressed

evidence might have affected the outcome of the trial. See Agurs,

supra. ((This standard for review has been stated as warranting

reversal unless the prosecution can prove, beyond a reasonable

doubt, the suppressed evidence did not affect the outcome of the

case.

3. When Brady information is not tendered until shortly before trial

or during trial, to preserve the record counsel must immediately

move for continuance to investigate and develop the information.

Failure to comply and preserve the “lateness” of tender, forever

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waives any defect. The objection should be couched in terms of

due process and effective assistance of counsel. How can counsel

defend or prepare a defense unmindful of evidence in possession of

the government which weakens the government’s case.

BRADY AND PLEA NEGOTIATION AND PLEAS -

In 2012 the United States Supreme Court came down with its opinion

in Missouri v. Frye, 132 U.S. 1399 (2012). Without getting into a lengthy

discussion about the facts of the case, the gist of the opinion is that the

United States Supreme Court extended the right to effective assistance of

counsel to pleas and plea bargaining. Previously any effective assistance of

counsel concerns for a client would be resolved with a plea of guilty.

The court noted that so many criminal cases are resolved with guilty

pleas, denial of effective assistance of counsel should be a basis for habeas

relieve in a plea.

The implications of this opinion are pertinent to any discussion

concerning Brady v. Maryland, when one considers the ABA guidelines for

indigent defense. Guideline Standard 6.3 Decision to Enter a Plea of Guilty,

states:

(a) Counsel shall make it clear to the client that the client must make the ultimate decision whether to plead guilty. Counsel should investigate and explain to the client the prospective strengths and weakness of the case for the prosecution and defense, including the

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availability of prosecution witness (if known), relevant concessions and benefits subject to negotiation, and possible consequences of a conviction after trial. Counsel should not base a recommendation of a pleas of guilty solely on the client’s acknowledgement of guilt or solely on a favorable disposition offer.

This standard would seem to impart a logical requirement that

effective assistance of counsel has been denied when an attorney engages in

plea negotiations with the prosecution and plea discussions with the client

until the case has been completely investigated, factually and legally, and the

strengths and weaknesses of the government’s case determined.

How can a client be given complete disclosure of the strengths and

weaknesses of the government’s case without disclosure of Brady material?

Brady information, by its very nature, is potential weakness in the

government’s case and could be the basis for a finding of innocence,

impeachment of a government witness and/or mitigation of the sentence?

Since the opinion in Missouri v. Frye, defense counsel cannot rely

upon at-trial tender of Brady material. Such material must be or should be

tendered before a plea of guilty can be discussed intelligently and effectively

with a client.

CONCLUSION –

As members of the criminal defense bar, charged with the protecting

of the constitution, we must unerringly push the envelope and increase the

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protections. We must not all into settling for what is usual. Be creative. Be

forceful and assert every constitutional right.

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SAMPLE COURT MONITORED BRADY MOTION

This is a sample motion, applicable in every kind of criminal case to prevent, rather than try to unring the bell, Brady violations.

UNITED STATES DISTRICT COURT EASTERN DISTRICT of WHEREVER

UNITED STATES OF AMERICA, ) ) Plaintiff, ) Criminal No XXXXXXX ) v. ) ) XXXXXXXXXX ) ) Defendant. )

MOTION FOR COURT MONITORED BRADY DISCLOSURE

MOTION SUMMARY

The United States Department of Justice has an abysmal history,

including current events, of prosecutorial misconduct, particularly in

compliance with the constitutional due process requirements of Brady v.

Maryland, 373 U.S. 83 (1963). The issue has been exacerbated by the recent

opinion in Connick v. Thompson, 131 U.S. 1350 (2011) creating absolute

immunity of prosecutors for wrongful convictions resulting from

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suppression of defense favorable evidence. Defendant proposes that the

following process be implemented to permit the prosecution to comply with

the Rules of Professional Conduct and to seek, when necessary, protective

orders, when specific Brady requests are made and the prosecution questions

that appropriateness of tender or questions the classification of a given item

of evidence or information as Brady material, subject to immediate tender.

PRAYER SUMMARY

To limit the likelihood of intentional or negligent denial of the

defendant's due process rights, the defendant seeks implementation of the

following:

1. Requiring the prosecution to admit or deny, either in writing or

on the record, the existence of each specific and enumerated item of Brady

requested information sought by the defense.

2. Requiring the prosecution to state, either in writing or on the

record, the specific steps it has taken to comply with Kyles v. Whitley, 514

U.S. 419 (1995), obligations to determine the existence of specific Brady

request information in the files and writings of law enforcement.

3. The court strongly encouraging the prosecution to disclose, or

at least to submit for in camera review, under penalty of sanction including

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dismissal, all evidence that is arguably within the rule in Brady and/or in

compliance with a specific and enumerated Brady request of the defense.

4. Requiring the prosecution to submit for in camera review, on

the record, such record to be sealed among the record of this case, any

exculpating, mitigating or impeachment information it wishes to withhold

because the prosecution believes the information is not "material" to the

outcome under Brady or information the disclosure of which would cause a

public or witness security concern.

5. The court issuing written orders and findings of fact and

conclusions of law regarding each specific Brady request made by the

defense.

MOTION

COMES NOW, XXXXXXXXX, defendant herein, by and through

counsel and moves for the implementation and the issuance of an order

detailing a specific procedure for court monitored constitutional due process

Brady tender supervision to insure that the prosecution can recognize

material which is subject to tender pursuant to Brady.

Brady and the ANY STATE Supreme Court ethics obligation require

the prosecution to timely tender any information known to the prosecution

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and law enforcement agencies involved in the investigation of the case all

information which:

1. could negate the defendant's guilt, or

2. which could lessen the degree of the offense, or

3. which could be used to impeach any government witness.

In support of the motion the defendant would allege and prove the

following:

1. the negligent and intentional non-compliance for the

timely disclosure of Brady material is a significant cause for substantiated

allegations of mistrials, wrongful convictions and actual innocence

convictions, in capital and non-capital cases, in the various courts of this

country, including the those of the United States.

2. there have been a significant series of documented violations of

the requirements for due process Brady tenders of evidence.

3. the Office of Professional Responsibility, the ethics compliance

arm of the United States District of Justice, has a long and documented

record of not imposing sanctions upon prosecutors found to have violated

defendants' due process rights through suppression of evidence favorable to

the accused.

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4. That the decision in Connick v. Thompson, 131 U.S. 1350

(2011), conveying absolute immunity from civil liability to prosecutors for

constitutional due process violations, removes one available sanction by

defendants for intentional violation of constitutional due process rights.

5. the existing standard of appellate review in criminal cases

grants reversals for convictions resulting from Brady violations only in those

instances wherein the suppressed evidence is would necessitate a different

verdict. See United States v. Bagley, 473 U.S. 667, (1985) at 662 ("[Brady]

evidence is only material 'if there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have been

different.'"); Bell v. Bell, 512 F.3d 233 (6th Cir., 2008. (" ... [N]ot every

violation of that duty [to disclose exculpating evidence] necessarily

establishes that the outcome was unjust. ... there is never a real 'Brady

violation' unless the nondisclosure was so serious that there is a reasonable

probability that the suppressed evidence would have produced a different

verdict."); Hutchinson v. Bell, 303 F.3d 720 (Fed. 6th Cir., 2002)("The

district court also noted that petitioner could not show a reasonable

probability of a different result if the [suppressed Brady] materials in the

second group of [suppressed Brady materials] had been timely disclosed.").

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WHEREFORE, premises considered, defendant prays that the court

impose the above procedures under the heightened standards for protection

of constitutional and statutory rights to insure the defendant's protection in a

capital trial.

Respectfully submitted,

XXXXXXXXX

By: __________________________ Of Counsel

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This is the Legal Ethics Opinion of the Virginia State Bar concerning the timeliness of Brady tender. It is offered to encourage other criminal trial lawyers to solicit from your ethics body, similar opinions and standards and provide substance to a critical legal and constitutional standard: due process, what the courts have not provided.

DRAFT OPINION OF VIRGINIA LEO 1862

(This opinion is a DRAFT Opinion and is subject to revision or withdrawal until it is finalized by the Ethics Committee – March 15, 2012) LEGAL ETHICS OPINION 1862 WHAT CONSTITUTES “TIMELY DISCLOSURE” 1 OF EXCULPATORY EVIDENCE BY A 2 PROSECUTOR? 3 4 In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of 5 exculpatory evidence, in the form of witness statements accusing another individual of the 6 offense with which the defendant is charged. The prosecutor is also aware that the primary 7 inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to 8 testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in 9 the case, although the prosecutor has offered a plea bargain in which the defendant would plead 10 guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed 11 either the exculpatory evidence or the death of the primary witness. 12 13 QUESTION PRESENTED 14 15 1. Is the “timely disclosure” of exculpatory evidence, as required by Rule 3.8(d), broader 16 than the disclosure mandated by Brady v. Maryland, 373 U.S. 83 (1963), and other case 17 law interpreting the Due Process clause of the Constitution? If so, what constitutes 18 “timely disclosure” for the purpose of Rule 3.8(d)? 19 20 2. During plea negotiations, does Rule 3.8(d) require a prosecutor to reveal information that 21 weakens the prosecution’s case against the defendant? 22 23 APPLICABLE RULES AND OPINIONS 24 25 The applicable Rule of Professional Conduct is Rule 3.8(d)1. 26 1 Rule 3.8 Additional Responsibilities Of A Prosecutor

A lawyer engaged in a prosecutorial function shall: *** (d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court; 2 See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to

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disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”), citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady “requires less of the prosecution than” Rule 3.8(d)). 27 ANALYSIS 28 29 Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal 30 obligation to disclose material exculpatory evidence to a defendant in time for the defendant to 31 make use of it at trial. A number of cases interpreting this legal obligation have noted that the 32 prosecutor’s ethical duty to disclose exculpatory evidence is broader than the legal duty arising 33 from the Due Process clause, although they have not explored the contours of that ethical duty.2 34 35 LEO 1862 Page 2 Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments, 36 the Brady standard for disclosure. The standard established by the Rule is also significantly 37 different from the Brady standard in at least two ways: first, the Rule is not limited to “material” 38 evidence, but rather applies to all evidence which has some exculpatory effect on the defendant’s 39 guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual 40 knowledge of the evidence and its exculpatory nature3, while Brady imputes knowledge of other 41 state actors, such as the police, to the prosecutor. These differences from the Brady standard 42 raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady 43 standard, which requires only that the evidence be disclosed in time for the defendant to make 44 effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the 45 evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on 46 the relevant evidence.4 47 3 As Comment [4] to Rule 3.8 explains, “[p]aragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case.”

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4 See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987). 48 Although the Committee has never definitively addressed the question, it opines today 49 that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the 50 Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on 51 the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the 52 Virginia State Bar Disciplinary Board’s order revoking a prosecutor’s license, finding that the 53 prosecutor had complied with his legal obligations under Brady and therefore had complied with 54 the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was 55 DR 8-102 of the Virginia Code of Professional Responsibility which read, “The prosecutor in a 56 criminal case or a government lawyer shall . . . [d]isclose to a defendant all information required 57 by law.” 58 59 At the time of the conduct at issue, Beverly Read was a Commonwealth’s Attorney. 60 Read was conducting the prosecution of an arson case. During the investigation, the 61 Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at 62 the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and 63 later became convinced that the defendant was not the person Sils had observed at the scene of 64 the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the 65 scene of the crime. Read told Sils that he would not be called as a witness and that his presence 66 was no longer necessary. Read concluded his case and rested without disclosing that the two 67 witnesses had changed their statements. When Sils went home and had further discussions with 68 the other witness, Dunbar, both became convinced that the defendant was not the man they saw. 69 They returned to the courthouse during the trial the following day and agreed to testify for the 70 defense. Read then attempted to pass a message to defense counsel that would have disclosed 71 the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in 72 passing this information to defense counsel, Read then read into the record that the two witnesses 73 had recanted and would testify that the defendant was not the man they saw at the scene of the 74 crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct. 75 LEO 1862 Page 3

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The motion to dismiss was denied. A complaint against Read was made with the Virginia State 76 Bar and a disciplinary proceeding ensued. 77 78 Read’s counsel argued that his client had complied with Brady because the information 79 was available to use during trial, and therefore had disclosed “all information required by law.” 80 In spite of the Board’s finding that Read had willfully intended to see the defendant tried without 81 the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that 82 Read had complied with the disciplinary rule, reversed the Disciplinary Board’s decision, and 83 entered final judgment that Read had not engaged in any misconduct. Following this decision, 84 the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in 85 Rule 3.8(d). 86 87 In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady 88 standard, the Committee next turns to the meaning of “timely disclosure.” In general, “timely” is 89 defined as “occurring at a suitable or opportune time” or “coming early or at the right time.” 90 Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and 91 circumstances of the case. On the other hand, the duty to make a timely disclosure is violated 92 when a prosecutor intentionally delays making the disclosure or withholds disclosure in order to 93 gain a strategic advantage in the case. 94 95 The text of the Rule makes clear that a court order is sufficient to delay or excuse 96 disclosure of information that would otherwise have to be turned over to the defendant. Thus, 97 where the disclosure of particular facts at a particular time may jeopardize the investigation or a 98 witness, the prosecutor should immediately seek a protective order or other guidance from the 99 court in order to avoid those potential risks. As specified by the Rule, however, disclosure must 100 be “precluded or modified by order of a court” (emphasis added) in order for the prosecutor to 101 be excused from disclosure. 102 103 Because this is not a bright-line rule, the Committee cannot give a definitive answer to 104 the question of whether the prosecutor must immediately turn over the exculpatory evidence at 105 issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because 106 his legal obligations pursuant to Brady have not yet been triggered. 107 108 The answer to the second question is apparent from the text of the Rule. The Rule 109 requires disclosure of “the existence of evidence” which the prosecutor knows is exculpatory. 110 Although the death or other unavailability of the prosecutor’s primary witness likely does make 111 it less likely that the defendant will be convicted at trial, it is clearly not “evidence” and thus its 112 disclosure is not required by Rule 3.8(d). 113 114 This opinion is advisory only based upon the facts as presented, and not binding on any 115 court or tribunal. 116 117 118

25

THE OGDEN MEMO - US DEPARTMENT OF JUSTICE

This is an excerpt of a memorandum sent to all United States Attorneys regarding discovery and, through it, the timeliness of Brady tender. Though not the law, it is a valuable aid and support for argument. David Ruhnke is to be thanked for bringing it to the attention of the defense bar.

MEMORANDUM FOR DEPARTMENT PROSECUTORS

Monday, January 4, 2010

FROM: David W. Ogden Deputy Attorney General

SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery

…

B. Timing: Exculpatory information, regardless of whether the information is

memorialized, must be disclosed to the defendant reasonably promptly after

discovery. Impeachment information, which depends on the prosecutor’s decision

on who is or may be called as a government witness, will typically be disclosed at a

reasonable time before trial to allow the trial to proceed efficiently. See USAM §9-

5.001. Section 9-5.001 also notes, however, that witness security, national security, or other

issues may require that disclosures of impeachment information be made at a time and in a

manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to

controlling law in their circuit and district governing disclosure obligations at various stages of

litigation, such as pre-trial hearings, guilty pleas, and sentencing.

Prosecutors should consult the local discovery rules for the district in which a case has been

indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be

produced without a request by the defendant and within a specified time frame, unless a court

order has been entered delaying discovery, as is common in complex cases. Prosecutors must

comply with these local rules, applicable case law, and any final court order regarding discovery.

In the absence of guidance from such local rules or court orders, prosecutors should consider

making Rule 16 materials available as soon as is reasonably practical but must make disclosure no

later than a reasonable time before trial. In deciding when and in what format to provide

discovery, prosecutors should always consider security concerns and the other factors set forth in

26

subparagraph (A) above. Prosecutors should also ensure that they disclose Fed.R.Crim.P.

16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in

Fed.R.Crim.P. 16(b)(1).

Discovery obligations are continuing, and prosecutors should always be alert to developments

occurring up to and through trial of the case that may impact their discovery obligations and

require disclosure of information that was previously not disclosed.

Emphasis added.

(This opinion is a DRAFT Opinion and is subject to revision or withdrawal until it is

finalized by the Ethics Committee – March 15, 2012)

LEGAL ETHICS OPINION 1862 WHAT CONSTITUTES “TIMELY DISCLOSURE” 1

OF EXCULPATORY EVIDENCE BY A 2

PROSECUTOR? 3

4

In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of 5

exculpatory evidence, in the form of witness statements accusing another individual of the 6

offense with which the defendant is charged. The prosecutor is also aware that the primary 7

inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to 8

testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in 9

the case, although the prosecutor has offered a plea bargain in which the defendant would plead 10

guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed 11

either the exculpatory evidence or the death of the primary witness. 12

13

QUESTION PRESENTED 14

15

1. Is the “timely disclosure” of exculpatory evidence, as required by Rule 3.8(d), broader 16

than the disclosure mandated by Brady v. Maryland, 373 U.S. 83 (1963), and other case 17

law interpreting the Due Process clause of the Constitution? If so, what constitutes 18

“timely disclosure” for the purpose of Rule 3.8(d)? 19

20

2. During plea negotiations, does Rule 3.8(d) require a prosecutor to reveal information that 21

weakens the prosecution’s case against the defendant? 22

23

APPLICABLE RULES AND OPINIONS 24

25

The applicable Rule of Professional Conduct is Rule 3.8(d)1. 26

27

ANALYSIS 28

29

Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal 30

obligation to disclose material exculpatory evidence to a defendant in time for the defendant to 31

make use of it at trial. A number of cases interpreting this legal obligation have noted that the 32

prosecutor’s ethical duty to disclose exculpatory evidence is broader than the legal duty arising 33

from the Due Process clause, although they have not explored the contours of that ethical duty.2 34

35

1 Rule 3.8 Additional Responsibilities Of A Prosecutor

A lawyer engaged in a prosecutorial function shall:

***

(d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of

evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or

reduce the punishment, except when disclosure is precluded or modified by order of a court; 2 See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) (“Although the Due Process Clause of the Fourteenth

Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose

evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.”),

citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady “requires less of the prosecution

than” Rule 3.8(d)).

LEO 1862

Page 2

Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments, 36

the Brady standard for disclosure. The standard established by the Rule is also significantly 37

different from the Brady standard in at least two ways: first, the Rule is not limited to “material” 38

evidence, but rather applies to all evidence which has some exculpatory effect on the defendant’s 39

guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual 40

knowledge of the evidence and its exculpatory nature3, while Brady imputes knowledge of other 41

state actors, such as the police, to the prosecutor. These differences from the Brady standard 42

raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady 43

standard, which requires only that the evidence be disclosed in time for the defendant to make 44

effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the 45

evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on 46

the relevant evidence.4 47

48

Although the Committee has never definitively addressed the question, it opines today 49

that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the 50

Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on 51

the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the 52

Virginia State Bar Disciplinary Board’s order revoking a prosecutor’s license, finding that the 53

prosecutor had complied with his legal obligations under Brady and therefore had complied with 54

the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was 55

DR 8-102 of the Virginia Code of Professional Responsibility which read, “The prosecutor in a 56

criminal case or a government lawyer shall . . . [d]isclose to a defendant all information required 57

by law.” 58

59

At the time of the conduct at issue, Beverly Read was a Commonwealth’s Attorney. 60

Read was conducting the prosecution of an arson case. During the investigation, the 61

Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at 62

the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and 63

later became convinced that the defendant was not the person Sils had observed at the scene of 64

the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the 65

scene of the crime. Read told Sils that he would not be called as a witness and that his presence 66

was no longer necessary. Read concluded his case and rested without disclosing that the two 67

witnesses had changed their statements. When Sils went home and had further discussions with 68

the other witness, Dunbar, both became convinced that the defendant was not the man they saw. 69

They returned to the courthouse during the trial the following day and agreed to testify for the 70

defense. Read then attempted to pass a message to defense counsel that would have disclosed 71

the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in 72

passing this information to defense counsel, Read then read into the record that the two witnesses 73

had recanted and would testify that the defendant was not the man they saw at the scene of the 74

crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct. 75

3 As Comment [4] to Rule 3.8 explains, “[p]aragraphs (d) and (e) address knowing violations of the respective

provisions so as to allow for better understanding and easier enforcement by excluding situations where the

lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel

who may be only minimally involved in a case.”

4 See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987).

LEO 1862

Page 3

The motion to dismiss was denied. A complaint against Read was made with the Virginia State 76

Bar and a disciplinary proceeding ensued. 77

78

Read’s counsel argued that his client had complied with Brady because the information 79

was available to use during trial, and therefore had disclosed “all information required by law.” 80

In spite of the Board’s finding that Read had willfully intended to see the defendant tried without 81

the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that 82

Read had complied with the disciplinary rule, reversed the Disciplinary Board’s decision, and 83

entered final judgment that Read had not engaged in any misconduct. Following this decision, 84

the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in 85

Rule 3.8(d). 86

87

In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady 88

standard, the Committee next turns to the meaning of “timely disclosure.” In general, “timely” is 89

defined as “occurring at a suitable or opportune time” or “coming early or at the right time.” 90

Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and 91

circumstances of the case. On the other hand, the duty to make a timely disclosure is violated 92

when a prosecutor intentionally delays making the disclosure or withholds disclosure in order to 93

gain a strategic advantage in the case. 94

95

The text of the Rule makes clear that a court order is sufficient to delay or excuse 96

disclosure of information that would otherwise have to be turned over to the defendant. Thus, 97

where the disclosure of particular facts at a particular time may jeopardize the investigation or a 98

witness, the prosecutor should immediately seek a protective order or other guidance from the 99

court in order to avoid those potential risks. As specified by the Rule, however, disclosure must 100

be “precluded or modified by order of a court” (emphasis added) in order for the prosecutor to 101

be excused from disclosure. 102

103

Because this is not a bright-line rule, the Committee cannot give a definitive answer to 104

the question of whether the prosecutor must immediately turn over the exculpatory evidence at 105

issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because 106

his legal obligations pursuant to Brady have not yet been triggered. 107

108

The answer to the second question is apparent from the text of the Rule. The Rule 109

requires disclosure of “the existence of evidence” which the prosecutor knows is exculpatory. 110

Although the death or other unavailability of the prosecutor’s primary witness likely does make 111

it less likely that the defendant will be convicted at trial, it is clearly not “evidence” and thus its 112

disclosure is not required by Rule 3.8(d). 113

114

This opinion is advisory only based upon the facts as presented, and not binding on any 115

court or tribunal. 116

117

118

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